Petitioners Jeffry Umaña Muñoz and Iliana Perez challenge the employment policy of the Regents of the University of California (University) that prohibits it from employing undocumented students who do not have federal work authorization.  They argue, among other things, that the University’s policy is unlawful because it discriminates in violation of the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.) and specifically section 11028, subdivision (f)(3) of title 2 of the California Code of Regulations, which provides that it is “an unlawful practice for an employer or other covered entity to discriminate against an employee because of the employee’s or applicant’s immigration status, unless the employer has shown by clear and convincing evidence that it is required to do so in order to comply with federal immigration law.” 

The University has expressly taken no position on whether its policy is required by federal law.  Rather, it argues that its policy does not discriminate based on immigration status and that even if it did, decisions regarding the policy are vested in its sound discretion, and the continued use of the policy is supported by its “analysis of the risks to the University and its students and employees if it hires undocumented students without federal work authorization, including the significant risk that the federal government will read [the Immigration Reform and Control Act of 1986 (IRCA) (8 U.S.C. § 1101 et seq.)] to apply to the University and initiate enforcement action and a federal court may agree.”  

We conclude that the University’s employment policy facially discriminates based on immigration status and that, in light of applicable state law, the discriminatory policy cannot be justified by the University’s proffered reason.  As a result, the University abused its discretion when it relied on improper criteria in deciding to continue using its policy.  Accordingly, we will issue a writ of mandate directing the University to reconsider its policy based on proper criteria.

https://www4.courts.ca.gov/opinions/documents/A171410.PDF